KPORFOR AND ANOTHER vs. SOSU [1978]DLHC1150

Date	1978-10-24
Suit No.
Citation No.	[1978]DLHC1150

LAMPTEY J.

AMESIMEKU FOR THE APPELLANTS.

GIKUNOO FOR THE RESPONDENT.

[1978]DLHC1150
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													<main id="main" class="content" style="min-height: 60rem" >KPORFOR AND ANOTHER <o:p></o:p>vs. <o:p></o:p>SOSU<o:p></o:p>[HIGH COURT, HO]<o:p></o:p>&nbsp;[1979] GLR 416<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
24 OCTOBER 1978<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AMESIMEKU FOR THE APPELLANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

LAMPTEY J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LAMPTEY J.<o:p></o:p>In the
court below the plaintiff-respondent (hereinafter called the plaintiff) sued
the defendants-appellants (hereinafter called the defendants) jointly and
severally and claimed the sum of ¢200 being damages for breach of marriage
agreement. The particulars of the claim were set out in extension language following:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
first defendant agreed to marry the plaintiff and upon this agreement directed
the plaintiff to consult the second defendant, the father of the first
defendant, who also agreed that the first defendant should marry the plaintiff
and accepted all the required head moneys from the plaintiff in accordance with
customary marriage rules. That after the plaintiff had offered all the required
expenses, the first defendant refused to come to the plaintiff as his wife upon
the advice of the second defendant.”<o:p></o:p>He also
claimed the sum of ¢137 being head money and expenses made on the first
defendant.<o:p></o:p>After the
trial magistrate had heard all the evidence he entered judgment for the
plaintiff against the defendants and condemned the defendants in general damages
of ¢100 and special damages of ¢134. The plaintiff was also awarded costs of
¢20.85. The defendants, aggrieved by the judgment, appealed to this court. The
judgment of the lower court was attacked on a number of grounds which raised
serious issues of law.<o:p></o:p><o:p>&nbsp;</o:p>The first
ground of appeal complained that the trial magistrate failed to make a finding
on the issue of the capacity of the first defendant to marry. Mr. Amesimeku
contended that there was evidence to show and establish that the first
defendant was at all material times a married woman and not a femme sole. The
first defendant therefore lacked capacity to contract another marriage when
there was in existence a valid marriage between her and one Togbolo. Counsel
for the defendants submitted that if the trial magistrate had made a finding
that the first defendant was a married woman, he would have found further that
any agreement on the part of the first defendant to marry was contrary to
customary law and therefore unenforceable.<o:p></o:p>In my
view the issue whether or not the first defendant was a married woman at the
material time is crucial to the success or failure of the plaintiff’s claim.
The trial magistrate was in duty bound to resolve that issue one way or
another. It is trite law that marriage can only be contracted between two
parties each of whom has capacity to contract that marriage. Whether or not a
person has capacity to contract a marriage is a matter of law. On the capacity
of a woman to marry or be married this is how Sarbah put it in his Fanti Customary
Laws (3rd ed.) at p. 46: “He who desires a woman, whether maiden or widow, in
marriage, must apply to her family . . . “ (The emphasis is mine.) It seems to
me fairly clear from the above passage that the woman whose hand is sought in
marriage must be either a maiden or a widow. It cannot be doubted that a woman
who is already married and therefore not divorced lacks capacity to contract
another marriage.<o:p></o:p><o:p>&nbsp;</o:p>In the
instant case the defendants stated that there had never been any agreement on
their part consenting to a marriage between the first defendant and the
plaintiff. The defendants’ case was that the first defendant was at all
material times a married woman with one child of that marriage.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s case was that the first defendant was a single woman and that
pursuant to consent given him by the second defendant, he the plaintiff, fully
performed due and necessary custom resulting in marriage between the first
defendant and himself. The conduct of the first defendant in refusing to move
into the matrimonial home amounted to a breach of the marriage agreement. It
was the case of the plaintiff that it was the second defendant who induced and
counselled the first defendant to stay a</main>